-1- (W.P.S. No. 3674 of 2022) 2025:CGHC:1723-DB AFR HIGH COURT OF CHHATTISGARH, BILASPUR WRIT PETITION (S) NO. 3674 OF 2022 [Order reserved on : 04.12.2024] [Order passed on : 10.01.2025]  Rajat Kumar Kesharwani, S/o Shri Mahesh Prasad Kesharwani, aged about 49 years, posted as Chemist, at O/o the Deputy Director, Industrial, Health and Safety, Hygiene Laboratory, Raipur, District Raipur (C.G.) ... Petitioner(s) Versus 1. State of Chhattisgarh, through: Secretary, Department of Labour, Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, Raipur, District Raipur (C.G.) 2. The Labour Commissioner, Chhattisgarh, H.Q., Indrawati Bhawan, Nawa Raipur, Atal Nagar, Raipur (C.G.) 3. The Chhattisgarh Public Service, Commission, Raipur, through: Secretary, Shankar Nagar Road, Raipur (C.G.) ... Respondent(s) __________________________________________________________ For Petitioner :- Mr. Rajesh Kumar, Kesharwani, Advocate, with Ms. Shrijita Kesharwani, Advocate. For Respondents 1 & 2 :- Mr. Arvind Dubey, Government Advocate. For Respondent 3 :- Mr. Anand Mohan Tiwari, Advocate. _________________________________________________________ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal C A V Order -2- (W.P.S. No. 3674 of 2022) Sanjay K. Agrawal, J. 1. Invoking writ jurisdiction of this Court under Article 226 of the Constitution of India, the Petitioner herein has challenged the constitutional validity of the Chhattisgarh Labour Service (Non-Gazetted) Class-III Recruitment Rules, 2014 (hereinafter shall be referred to as ‘the Rules of 2014’) to the extent of Column No.4, Serial No.13 of Schedule-IV of the said Rules of 2014, as well as the Notification dated 4.9.2017 whereby amendment has been made in the Chhattisgarh Labour (Gazetted) Service Recruitment Rules, 2013 (hereinafter shall be referred to as ‘the Rules of 2013’) to the extent of Column No.2, 3 & 4, Heading-B of Schedule-II by which the post of ‘Assistant Director (Industrial Hygiene)’ has been inserted in the Rules of 2013 and which has to be filled up 100% by direct recruitment through Public Service Commission, branding it to be arbitrary, unreasonable and unconstitutional and seeking a writ to declare it ultra vires and unconstitutional to the provisions of Articles 14 & 16 of the Constitution of India. -3- (W.P.S. No. 3674 of 2022) Factual matrix of the case, in brief:- 2. It is the case of the Petitioner that initially he was appointed on the post of Chemist by Order dated 18.1.2008 and he was entitled for the benefit of Time Scale Pay in 2018 on completion of 10 years of his service. However, he was granted the said benefit by Order dated 8.1.2021, but no arrears have been paid. Further case of the Petitioner is that while enacting the Rules of 2014, total four (04) posts of the Chemist were sanctioned without providing any promotional avenue for the said post and only the Time Scale Pay has been provided on completion of 10 years of service, whereas in the service of Government of India, the post of Chemist is called ‘Senior Scientific Assistant’ and the promotional post of Chemist is the post of ‘Assistant Director (Industrial Hygiene)’, however, in accordance with the Rules of 2014 only one post of Assistant Director (Industrial Hygiene) has been sanctioned and which has to be filled up by direct recruitment and to fill up the said post, the Respondent No.3-Chhattisgarh Public Service Commission invited application through -4- (W.P.S. No. 3674 of 2022) advertisement. Petitioner’s case further is that in the State of Chhattisgarh, only the Petitioner is having the requisite qualification for the post of Assistant Director (Industrial Hygiene) and only a single post has been advertised by direct recruitment, but on account of over-age, the Petitioner could not participate in the said recruitment process. Therefore, the Petitioner made representation for creating promotional channel for the post of Chemist like the recruitment rules enacted by the Ministry of Labour & Employment, Government of India where in the service of the Central Government the post of Assistant Director (Industrial Hygiene) is the promotional post of Senior Scientific Assistant (Chemist). However, despite the representation the rules have not been amended and advertisement has been issued seeking application for the said post of Assistant Director (Industrial Hygiene) by direct recruitment and, as such, the impugned Rules of 2013 which mandate direct recruitment for the post of Assistant Director (Industrial Hygiene) is arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India. Therefore, the Respondents be directed to create one promotional -5- (W.P.S. No. 3674 of 2022) post for the post of Chemist to the post of Assistant Director (Industrial Hygiene). 3. Respondents No.1 & 2/State filed their return stating, inter alia, that the present writ petition at the first instant is liable to be dismissed on the ground of delay and laches, as the Rules of 2013 have been framed by the State Government long back in the year 2013 and were published in the official gazette on 28.9.2013 and thereafter the said Rules were amended vide Notification dated 4.9.2017 incorporating amendment in Schedule-II, under Heading “(B) Industrial Health and Safety”, Column No. 2, 3 & 4, which has been sought to be challenged as ultra vires to the Constitution of India by way of filing the present writ petition on 11.5.2022 after a lapse of 8 years. It has been further stated that individual hardship, if any, to the Petitioner cannot be a ground for challenging the legislation [subordinate legislation] as ultra vires to the provisions of the Constitution of India and there is no dispute with regard to the legislative competence of the State Government to enact the rules mandating direct recruitment to the post of Assistant Director -6- (W.P.S. No. 3674 of 2022) (Industrial Hygiene). Further, it has been stated that the power to frame rules to regulate the conditions of service under proviso to Article 309 of the Constitution carries with it the power to amend or alter the said rules. Any rules which affect the right of person to be considered for promotion is a condition of service, though the mere chance of promotion may not. As such, it has been prayed for that the writ petition is liable to be dismissed. 4. No rejoinder has been filed by the Petitioner controverting the allegation and averments made in the writ petition. Submission on behalf of the Petitioner:- 5. Mr. Rajesh Kumar Kesharwani, learned Counsel for the Petitioner, would submit that the Petitioner is working on the post of Chemist for a fairly long time. Though he has been granted Time Scape Pay after completion of 10 years of service, but there is no promotional avenue for the post of Chemist and only one post of Assistant Director (Industrial Hygiene) has been created to be filled up by direct recruitment and the Petitioner could not compete for the said post on -7- (W.P.S. No. 3674 of 2022) account of over-age. As such, the Rules being arbitrary, unreasonable and unconstitutional are liable to be struck down as ultra vires to the provisions of the Constitution of India and the writ petition deserves to be allowed. To give strength to his submission, he would rely upon the decision of the Supreme Court rendered in the matters of Union of India v. Hemraj Singh Chouhan 1 and O.Z. Hussain v. Union of India2. Submission on behalf of Respondent-State:- 6. Mr. Arvind Dubey, learned State Counsel, per contra, would submit that it is the State Government who has to decide as to whether the said post is to be filled up by promotion or direct recruitment and the fixation of quotas or different avenues and ladders for promotion in favour of various categories or posts in feeder cadres based upon the structure and pattern of the department is a prerogative of the employer, mainly pertaining to the policy-making field. As such, the State having decided and enacted the Rules by which the post of Assistant Director (Industrial Hygiene) is to 1 (2010) 4 SCC 290 2 AIR 1990 SC 311 -8- (W.P.S. No. 3674 of 2022) be filled up by direct recruitment cannot be questioned by the Petitioner in a belatedly filed writ petition and the writ petition therefore deserves to be dismissed. Submission on behalf of Respondent-CGPSC:- 7. Mr. Anand Mohan Tiwari, learned Counsel appearing for Respondent - Public Service Commission would however support the stand taken by the State Counsel and submit that the impugned Rules are not arbitrary, unreasonable and unconstitutional and as such the present writ petition seeking a writ to declare it ultra vires and unconstitutional to the provisions of Articles 14 & 16 of the Constitution of India does not have any merit and is liable to be dismissed. Discussion and Analysis:- 8. We have heard learned Counsel appearing for the parties, considered their rival submissions made herein-above and also perused the record of the case with utmost care and circumspection. 9. The short question involved in the present Writ Petition is as under:- -9- (W.P.S. No. 3674 of 2022) “Whether the constitutional validity of the Rules of 2014 to the extent of Column No.4, Serial No.13 of Schedule-IV as well as the Notification dated 4.9.2017 whereby amendment has been made in the Rules of 2013 to the extent of Column No.2, 3 & 4, Heading-B of Schedule-II providing the post of Assistant Director (Industrial Hygiene) is to be filled up by direct recruitment are unconstitutional and liable to be struck down.” Principles for Examining Constitutional Validity: 10. A statute is construed so as to make it effective and operative on the principle expressed in the maxim “ut res magis valeat quam pereat”. Therefore, a presumption that the Legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the Legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. (See: Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition, page 592.) 11. It is a settled principle of law that the Statute enacted by the Parliament or State Legislature cannot be declared unconstitutional lightly. The Court must be able to hold beyond any iota of doubt that the -10- (W.P.S. No. 3674 of 2022) violation of the constitutional provisions was so glaring that the legislative provisions under challenge cannot stand. 12. The Constitution Bench of the Supreme Court in the matter of Shayara Bano v. Union of India and Others (Ministry of Women and Child Development Secretary and Others)3 held that legislation can be struck down if it is manifestly arbitrary and manifest arbitrariness is the ground to negate legislation as well under Article 14 of the Constitution of India. It has been observed by their Lordships as under :- “101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India4 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without 3 (2017) 9 SCC 1 4 (1985) 1 SCC 641 : 1985 SCC (Tax) 121 -11- (W.P.S. No. 3674 of 2022) adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.” 13. Very recently, in the matter of Dr. Jaya Thakur v. Union of India and Others5, it has been held by a three-judge Bench of the Supreme Court that judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive by observing as under: - “68. It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.” 14. Thereafter, in Dr. Jaya Thakur (supra), their Lordships of the Supreme Court relying upon their earlier judgment in the matter of Binoy Viswam v. 5 2023 SCC OnLine SC 813 -12- (W.P.S. No. 3674 of 2022) Union of India and Others6 and reviewing their earlier decisions, speaking through B.R. Gavai, J., have held that the statute enacted by the Parliament or a State Legislature cannot be declared unconstitutional lightly, and observed as under :- “70. It could thus be seen that this Court has held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. To do so, the Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. It has been held that unless there is flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared bad. 71. It has been the consistent view of this Court that legislative enactment can be struck down only on two grounds. Firstly, that the appropriate legislature does not have the competence to make the law; and secondly, that it takes away or abridges any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. It has been held that no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. It has been held that Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to 6 (2017) 7 SCC 59 -13- (W.P.S. No. 3674 of 2022) know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. 72. It has been held by this Court that there is one and only one ground for declaring an Act of the legislature or a provision in the Act to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. It has further been held that if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope. 73. It has consistently been held that there is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. It has been held that if the law which is passed is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. 74. It could thus be seen that the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted. The other ground on which the validity can be challenged is that such an enactment is in contravention of any of the fundamental -14- (W.P.S. No. 3674 of 2022) rights stipulated in Part III of the Constitution or any other provision of the Constitution. Another ground as could be culled out from the recent judgments of this Court is that the validity of the legislative act can be challenged on the ground of manifest arbitrariness. However, while doing so, it will have to be remembered that the presumption is in favour of the constitutionality of a legislative enactment.” 15. Furthermore, in the matter of Dental Council of India v. Biyani Shikshan Samiti and Another 7, their Lordships of the Supreme Court have held that there is always a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. B.R. Gavai, J., speaking for the Supreme Court, held in paragraphs 27 & 28 of the report as under: - “27. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being 7 (2022) 6 SCC 65 -15- (W.P.S. No. 3674 of 2022) reasonable, but should be in the sense that it is manifestly arbitrary. 28. It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution. It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant.” 16. Similarly, in the matter of PGF Limited and others v. Union of India and Another8, their Lordships of the Supreme Court have laid down certain guidelines by taking note of certain precautions to be observed whenever the vires of any provision of law is raised before the Court and cautioned the Courts in paragraph 37 as under:- “37. The Court can, in the first instance, examine whether there is a prima facie strong ground made out in order to examine the vires of the provisions raised in the writ petition. The Court can also note whether such challenge is made at the earliest point of time when the statute came to be introduced or any provision was brought into the statute book or any long time-gap exists as between the date of the enactment and the date when the challenge is made. It should also be noted as to whether 8 (2015) 13 SCC 50 -16- (W.P.S. No. 3674 of 2022) the grounds of challenge based on the facts pleaded and the implication of the provision really has any nexus apart from the grounds of challenge made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provision operates the field as against the prevention of such operation. The Court should also examine the extent of financial implications by virtue of the operation of the provision vis-a-vis the State and alleged extent of sufferance by the person who seeks to challenge based on the alleged invalidity of the provision with particular reference to the vires made. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provision in the larger interest of the public. We have only attempted to set out some of the basic considerations to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds on the above lines for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining the same as well as for granting any interim relief during the pendency of such writ petitions. For the abovestated reasons it is also imperative that when such writ petitions are entertained, the same should be disposed of as expeditiously as possible and on a time- bound basis, so that the legal position is settled one way or the other.” -17- (W.P.S. No. 3674 of 2022) Relevant provision under challenge: 17. Before proceeding further, it would be relevant to reproduce herein amended rules in question viz., Column No.2, 3 & 4, Heading-B in Schedule-II of the Notification dated 4.9.2017 whereby amendment has been made in the Rules of 2013 and which has been sought to be challenged as arbitrary and unconstitutional:- 2. In Schedule-II, under heading “(B) Industrial Health and Safety”, below entry “Deputy Director” in column number (2) and entries relating thereto, the following shall be inserted, namely:- (1) (2) (3) (4) (5) (6) “Deputy Director Health” 01 --- 100% (by deputation in case of unavailability of qualified candidate in departmental cadre) Assistant Director Industrial Hygiene 01 100% (through Public Commission) Relevant judgments: 18. It is well settled law that the power to frame rules to regulate the conditions of service under proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules. It is also well settled that fixing or determining the eligibility criteria for selection like, subjects, minimum qualifications -18- (W.P.S. No. 3674 of 2022) and percentage of marks and creation or regulation of the post are always the prerogative of employer. Merely because any criteria, which does not suit any candidate cannot be said to be ultra vires for the reason that it excludes some of the candidates and any recruitment rule causing hardship to the candidate to declare the statute unconstitutional. 19. In the matter of Dwarika Prasad and Others v. Union of India and Others9, the Supreme Court considered the issue and held that fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to policy making field, and observed in paragraph-16 as under:- “16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to policy making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience 9 (2003) 6 SCC 535 -19- (W.P.S. No. 3674 of 2022) and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in feeder cadre cannot be a sole criteria or basis to claim parity in the chances of promotion by various holders of posts in feeder categories.” 20. Similarly, in the matter of Satyanarayana and Others v. S. Purushotham and Others 10, their Lordships of the Supreme Court have held that the power of the State to fix quota for promotion cannot be said to be violative of the constitutional scheme of equality as contemplated under Articles 14 & 16 of the Constitution of India, and observed in paragraphs 23, 25 & 26 as under:- “23. We, however, are of the opinion that the validity or otherwise of a quota rule can- not be determined on surmises and conjec- tures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contem- plated under Articles 14 and 16 of the Con- stitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordi- 10 (2008) 5 SCC 416 -20- (W.P.S. No. 3674 of 2022) narily be interfered with and the Superior Courts, while exercising its power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India. [See Vasu Dev Singh & Ors. v. Union of India & Ors. (2006) (12) SCC 753 and State of Kerala & Ors. v. Unni & Anr. (2007) 2 SCC 365]. 24. xxx xxx xxx 25. While saying so, we are not unmindful of the legal principle that nobody has a right to be promoted; his right being confined to right to be considered therefor. 26. Similarly, the power of the State to take a policy decision as a result whereof an em- ployee's chance of promotion is diminished cannot be a subject matter of judicial review as no legal right is infringed thereby.” Conclusion: 21. Coming to the facts of the case, in light of the principles of law laid down in the judgments of the Supreme Court referred to herein-above with regard to the power of the State Government qua the fixation of quotas or different avenues and ladder for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the department is purely the prerogative of the State -21- (W.P.S. No. 3674 of 2022) Government. It is quite vivid that in the instant case the State Government has taken a decision to create the post of Assistant Director (Industrial Hygiene) and considering that only single post of Assistant Director (Industrial Hygiene) has been created and that is the reason that the State Government further decided to fill up the said post by way of direct recruitment which enabled all eligibles including the Petitioner to compete and get selected on the said post, rather than making it by way of promotion being the single post of Assistant Director (Industrial Hygiene). In our considered opinion, it was the considered policy decision of the State Government pertaining to policy- making field, which cannot be said to be either arbitrary, illegal or unconstitutional and violative of the Petitioner’s fundamental right guaranteed under Articles 14 & 16 of the Constitution of India. Even otherwise, the Petitioner’s hardship that on account of over-age he could not compete for the said post, cannot be a ground in itself for declaring the statute as unconstitutional. (See: Commissioner of Agricultural Income Tax, West Bengal v. Keshab -22- (W.P.S. No. 3674 of 2022) Chandra Mandal11, Bengal Immunity Co. Ltd. v. State of Bihar & Ors.12, and D.D. Joshi (Col.) & Ors. v. Union of India & Ors. 13.) 22. In view of the aforesaid discussion and analysis, we do not find any merit in the instant writ petition for declaring the recruitment of the post of Assistant Director (Industrial Hygiene) by way of direct recruitment as ultra vires and unconstitutional. 23. The Writ Petition sans merit and is accordingly dismissed, leaving the parties to bear their own costs. Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge sharad 11 AIR 1950 SC 265 12 AIR 1955 SC 661 13 (1983) 2 SCC 235 SHARAD KUMAR YADAV Digitally signed by SHARAD KUMAR YADAV Date: 2025.01.14 11:37:40 +0530